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Rustvold v. Taylor11/22/2000
En Banc
Argued and submitted October 25, 1999; resubmitted en banc September 20, 2000.
Judgment dismissing claim for medical malpractice reversed and remanded; otherwise affirmed.
Edmonds, J., concurring in part and dissenting in part.
LANDAU, J.
Plaintiff Jeri Rustvold appeals a summary judgment dismissing her claims for medical malpractice and negligent infliction of emotional distress arising out of a medical incident that she contends left her reasonably in fear of contracting Hepatitis B or HIV. We affirm in part, reverse in part, and remand for further proceedings.
The following facts are not in dispute. Plaintiff underwent a routine rib resection at defendant Legacy Emanuel Hospital & Health Center (Emanuel). In the course of that surgery, the anesthesiologist, defendant Taylor, administered an anesthetic by inserting a syringe into plaintiff's intravenous tubing; the syringe did not pierce plaintiff's skin. While cleaning up after the surgery, Taylor discovered two used syringes on his instrument tray. Both needles had been used to administer the same anesthetic. Taylor could not tell which one had been used on plaintiff, nor could he tell whether he had used the same syringe on a previous patient.
Taylor informed plaintiff that he could not tell whether the needle that he used for her surgery had already been used. He suggested that she be vaccinated for Hepatitis B and that she be tested for HIV. Plaintiff at first refused, but ultimately she underwent at least a portion of a Hepatitis B vaccination schedule and submitted to HIV testing on three occasions. Each time, plaintiff tested negative for HIV, and eventually doctors concluded to a medical certainty that she is not infected with either Hepatitis B or HIV. Doctors also determined that the previous patient whose syringe may have been used for plaintiff's operation was not infected with either Hepatitis B or HIV.
Plaintiff initiated this action for medical malpractice and negligent infliction of emotional distress. In her complaint, she alleged that defendants were negligent in the following particulars:
"a) In failing to ensure that Plaintiff * * * would not be given medication with a syringe that had previously been used on another patient;
"b) In failing to properly prepare the anesthesia area for the surgery involving Plaintiff * * *;
"c) In failing to properly clean up after the previous surgery;
"d) In giving medication to Plaintiff * * * with a syringe that likely had been used on a prior patient thus exposing Plaintiff * * * to blood born disease; and;
"e) In failing to inform Plaintiff * * * immediately of the fact that it was likely that she had been given medication with a used syringe."
Both Emanuel and Taylor moved for summary judgment, arguing that plaintiff had failed to show either the harm or causation elements of a medical malpractice claim and that her negligent infliction claim fails for lack of physical injury concurrent with the emotional distress.
In support of their motions, Emanuel and Taylor relied on, among other things, an affidavit of an expert witness asserting that, because the syringe did not pierce plaintiff's skin, because there was no more than a 50-percent chance that a previously used syringe was used in her surgery, because of the remote odds of infection even if the previous patient was infected, and because the previous patient was not infected with either Hepatitis B or HIV, there was no reasonable probability that patient had sufficient contact with any prior patient's bodily fluids to transmit a
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